Q. Are tzedakah decisions totally discretionary? Are there rules?
A. Even the most devoted practitioners of chesed and charity are human and are restricted by the limitations of reality. Resources are finite; time, money and emotional energy all require careful allocation. Since resources that are bestowed in one place cannot be bestowed elsewhere, the halachah has formulated principles of prioritization to guide the maximal fulfillment of the crucial mitzvah of tzedakah.
In general, the discussion is complicated by the fact that the expression of charity will generally allow for some measure of personal discretion. Discretion, by definition, would seem to be incompatible with regulation. On the one hand, tzedakah is a concrete religious obligation, codified in the Yoreh De’ah section of Shulchan Aruch along with much of what makes up the curriculum of rabbinic training. Nonetheless, the subjective factors applicable in evaluating charitable priorities are manifold, often obscure, and at times willfully misrepresented. To calculate urgency of need, priority, proportionality, honesty of supplicants and countless other factors, and emerge with clear direction, is a daunting task.
Nonetheless, discretion it remains; when all is said and done, individual judgment will steer the course. A frequent theme in rabbinic responsa is that after carefully analyzing the pertinent halachic aspects, it is up to the donor to assess the application.1
The Vilna Gaon is quoted as having homiletically understood the verse, “. . . V’lo tikpotz et yadcha mei’achicha ha’evyon—. . . You shall not close your hand against your destitute brother” (Deut. 15:7), as an instruction about the evaluative responsibility contained within the tzedakah imperative.2 When the hand is closed in a fist, all the fingers appear to be the same size. However, when the hand is open, it becomes clear that the fingers are all of different length. Similarly, the appearance of objectivity in tzedakah standards is deceptive. In real life, appropriate giving will always require a judgment call based on the subjective elements.
Q. How does one prioritize among the many who need?
A. The first priority incumbent on a donor is the support of his own needy relatives, with the closest relatives to be supported first.3 (As noted previously, however, this principle is inapplicable to the disburser of public funds, who is prohibited from favoring his relatives.4)
Perhaps the most famous principle of prioritization is that of “aniyei ircha kodmim,”5 indicating preference to those in closest proximity. The Meiri maintains that this is the overriding priority, and all other factors are evaluated only within this context.6
The Panim Yafot identifies two significant textual clues towards prioritization in the verse “Ki yihyeh vecha evyon…—If there shall be a destitute person among you…” (Deut. 15:7) The words “vecha” and “evyon” are of particular relevance. “Evyon” is a stronger term for a poor person than “ani,” suggesting true indigence. Etymologically, the word is related to the word “ta’ev,” indicating “need.” This becomes a guiding principle in prioritization: kol hata’ev, ta’ev kodem—the neediest comes first. This is the dominant rule, according to the Panim Yafot, overriding even the priority of aniyei ircha. All preferences of proximity presume comparable need; if there is a disparity in this area, priority goes to those in greatest need.7 However, even this rule is not absolute; the word “evyon” is preceded by the word “vecha.” When family is concerned, their needs come first, even if others outside the familial group are more urgently lacking.
Thus, two distinct factors compete for priority in charitable giving: severity of need and closeness in relationship.8 The analysis of the Panim Yafot was adopted by his famous student, the Chatam Sofer, who ruled accordingly that all priorities of proximity are only operative in cases of comparable need, although he dispensed with this standard when the recipient was the father of the donor.9
The parameters of the Chatam Sofer’s definition of family have sparked some analysis among later authorities.10 However, from the perspective of discretion, such delineation would be secondary to the emerging principle, a balancing of the often-competing elements of urgency and proximity.
The next prioritized category in the distribution of charity is aniyei Eretz Yisrael, the poor of the Land of Israel.11 The Chatam Sofer posits that within this category, the poor of Jerusalem take precedence over those of other cities since the sanctity of the city outlasts the destruction of the Temple (kidshah leatid lavo) and Jerusalem is, in any event, the home of the Divine Presence.12
“In a community in which not all parents are able to afford tuition for their children, the obligation falls on the community.”
Authorities debated the status of individuals who are rooted in a Diaspora community but are currently residing in the Land of Israel. According to Rabbi Chaim Halberstam of Sanz, no preference is shown to this group, which is now a part of the larger population of the needy of the Land of Israel.13 The Muncaczer Rebbe cites Rabbi Chaim Volozhiner, who does recognize a preference in this case.14 He then attempts to reconcile the two approaches, suggesting that the operative element is the question of whether this group is receiving any assistance already. Ultimately, he concludes that there is priority given, upholding the principle as established above: Those with the closest connection to the donor come first.15
In the view of many major authorities, aniyei ircha take precedence over the poor of Israel when there is a question of preferring one over the other.16 The Chatam Sofer explains this position in a manner consistent with that stated above, that aniyei ircha is premised on the significance granted to proximity, a factor not affected by the importance of the Land of Israel.17 The Sefat Emet observes that the Tur omits any reference to the prioritizing of the poor of Israel, perhaps assuming the concept was relevant only in the time of the Temple.18 He further states that the Shulchan Aruch, who does acknowledge the priority, did so only in reference to money that was to be distributed elsewhere in any event; aniyei ircha, however, would retain their priority.
However, some disagree with this position, positing that the priority of aniyei ircha assumes residence in Israel; since supporting those in Israel is simultaneously charity and a fulfillment of the commandment to settle the land, this duality gives greater priority to the impoverished of the Land of Israel.19 The Chida agrees, emphasizing the dire conditions prevalent in the Land of Israel in his day as tilting the equation.20 Rabbi Shmuel Wosner, on the other hand, rules that aniyei ircha maintain their status; the importance of aniyei ircha is enough to overcome even the combining of charity with other values.21
Among the points that the Chatam Sofer considers self-evident is that all of the principles of preference are meant only for proportional priority but do not eliminate the need to give support to those lower on the list. While the Maharsham, in his Da’at Torah, cites authorities to the contrary, the Chatam Sofer represents a popular view.22
The Steipler Gaon, Rabbi Yaakov Yisrael Kanievsky, suggests that the obligation of tzedakah manifests itself in two forms.23 On the one hand, there is a general, free-floating responsibility on those with means to share that wealth with the needy of the world. No individual can lay claim to this money. Second, there is a specific obligation to support the needy according to the principles listed above. This notion is one that is so tangible, in the Steipler Gaon’s view, as to actually create a legal claim on the part of potential recipients in this area (mamon sheyesh lo tov’im).24
Another possibly relevant principle might be learned from the realm of priestly gifts (matenot kehunah). While these gifts are obligatory, the donor maintains the right to decide which kohen will be the recipient. Nonetheless, the Talmud recognizes a circumstance in which a specific potential recipient does possess a claim. This case, known as “makarei kehunah,”25 concerns a donor who enjoys a close relationship with a certain kohen and has developed a pattern of consistent giving that has created an expectation on the part of the kohen.26
Building on this precedent, authorities question whether a similar notion of “makarei aniyim”27 exists, thus providing a consistent recipient with a claim to continued support. The Shach does seem to recognize such a concept,28 but the Maharshag assumes that, in general, the principle of “makarei” is only relevant to a specific obligatory donation with an unspecified recipient, such as the laws of matenot kehunah; the nature of charity is too subjective to be subject to this category. The Maharshag therefore suggests that the principle would only apply to funds that have already been separated.29 Although Rabbi Moshe Sternbuch doubts that such a responsibility applies to tzedakah, he recommends that, while larger contributions may be diverted from former beneficiaries at the will of the donor, smaller donations may not be casually discontinued.30
Q. Which causes should get first attention?
A. In addition to a system of prioritization among recipients, there are preferences indicated between different causes once the urgent needs of the poor without food have been seen to.
The Shulchan Aruch maintains that one who has funds to spare could do no better with them than to assist in the marrying off of poor young women.31 This appears to be the result of several factors.
First, this is a particularly effective means of providing support, in that the brides will ideally be cared for throughout their lifetimes. This factor would appear to be less relevant to the support of bridegrooms, who conventionally assume the burden of financial support. Nonetheless, authorities conclude that while brides have the highest priority, grooms are next in line.32
It seems that the primacy attributed to this area emanates from the principle of dei machsaro. The needs of brides are integral for personal happiness; individual sensitivities in this realm are acute and brides may be intensely sensitive to deficiencies.33
“Rabbi Wosner expresses extreme reservations about neglecting the poor to focus on the synagogue edifice.”
Thus, even within the category of wedding and marriage expenses, a hierarchy of needs exist. Of prime urgency is any element whose absence would prevent the wedding from taking place. Next on the list would be the provision of funds necessary for the couple to sustain their married life, adapted to the sliding scale of dei machsaro. Of course, this point will once again leave much to subjectivity and discretion.34 Next, the needs of the ceremony itself are considered; halachic sources authorize whatever is necessary to create appropriate joyousness and whatever is conventional and will cause humiliation if omitted, while at the same time cautioning against excesses.35
Another priority in charitable giving is Torah education. The structure of the local school system is, to some extent, derived from a system put into place by Rabbi Yehoshua ben Gamla, who created a centralized system for children to be educated outside of the home.36 In the opinion of some authorities, as a result of this enactment, supporting local schools is not only tzedakah but part of the basic obligation of Torah study; others understand that it is still tzedakah that is fulfilled, but of an even more mandatory nature.37 Halachic authorities quote from earlier sources that in a community in which not all parents are able to afford tuition for their children, the obligation falls on the community members as a whole in accordance with their capacity to contribute.38
Regarding the priority of supporting Torah education, there is some discussion as to which of two different arenas to emphasize, the training of children or the furthering of accomplished Torah scholars. On the one hand, the adult scholars are fully obligated in Torah study and are learning at an advanced level; they thus can put forward a claim of priority.39 On the other hand, the Torah study of children is crucial for basic religious foundation and is essential to the continuation of Judaism;40 thus, many authorities give it precedence.41 Rabbi Moshe Feinstein suggests that if those who are responsible for halachic guidance are unable to support themselves, they take precedence; otherwise, the children have priority.42
The Shulchan Aruch states that “there are those who say that mitzvat Beit HaKnesset (the commandment of the synagogue) is greater than tzedakah, and the mitzvah of tzedakah to young boys to learn Torah, or to the poor or the sick, is greater than Beit HaKnesset.”43 Some authorities question this,44 observing that the opposite order is found in Tosafot.45 Rabbi Shmuel Wosner considers the issue of the priority given to “mitzvat Beit HaKnesset,”46 first noting the lack of clarity47 as to whether the situation is that of building a synagogue to begin with or the continual maintenance of an existing one. Rabbi Wosner expresses extreme reservations about neglecting the poor to focus on the synagogue edifice. While mindful of potential enhancement to the spread of talmud Torah through the building of a synagogue,48 Rabbi Wosner nonetheless warns against any diversion of funds for the poor toward synagogue expenses that are in any way unnecessary or excessive.49
The needs of the larger world population, outside of the Jewish community, also merit a place on the list of causes supported by Jews. While the Talmud mandates assisting the poor of the world “together with the poor of Israel,”50 authorities have ruled, following the Ran, that this language is not meant to exclude situations in which no Jews are involved.51
Notes
1. See, for example, Rabbi Moshe Feinstein, Responsa Iggerot Moshe, Yoreh De’ah II, 115. See also Rabbi Shmuel Wosner, Responsa Shevet HaLevi I, 199; Responsa Givat Pinchas, 64; Rabbi David Shperber, Responsa Afarkasta DeAnya I, 183; and Rabbi Chaim Kanievsky, Derech Emunah, Hilchot Matnat Aniyyim 10:49.
2. See Responsa Teshuvot VeHanhagot I, 567.
3. Yoreh De’ah 251:3; see Responsa Givat Pinchas, 64.
4. Yoreh Deah 254:10. See also Rashi to Shabbat 118b and the discussion in Responsa Shevet HaKehati V, 178.
5. Yoreh De’ah 251:3.
6. Meiri, Ketuvot 85b. The works of the Meiri were unavailable for centuries; during that time, this position was associated with the Responsa Shemesh Tzedakah, cited by the Pitchei Teshuvah. See footnotes to the Meiri.
7. It is noteworthy that some authorities factor into the equation the level of embarrassment involved, thus according priority to a potential recipient less needy but at risk of greater embarrassment due to his reluctance to ask for help, while others reject this consideration; see Rabbi Avraham Avidan, Ahavat Tzedakah, ch. 9, 51, and fn. 163.
8. See also the discussion in Responsa Avnei Yoshpe IV, 100.
9. Responsa Chatam Sofer, Yoreh De’ah, 234; chiddushim to Nedarim 80b.
10. See Responsa Shevet HaLevi V, 135:4.
11. Yoreh De’ah 251:3.
12. Responsa, Yoreh Deah, 234. See also Torah Temimah, Deut. 15, #22, who independently suggests the Jerusalem distinction. Responsa Shevet HaLevi V, 135:5 questions the preference for Jerusalem, noting that the factors presented would only apply to the Old City of Jerusalem. Rabbi Chaim Kanievesky, Derech Emunah I, Hilchot Matnot Aniyyim, #239, assumes the issue is dependent on the sanctity of Jerusalem in contemporary times.
13. Responsa Divrei Chaim II, Choshen Mishpat, 68.
14. Responsa Minchat Elazar IV, 8.
15. The dispute between Rabbi Chaim Sanzer and Rabbi Chaim Volozhiner may also be related to the above question regarding the reasoning for the priority of aniyei Eretz Yisrael; if it stems from an expansion of “ircha,” that notion would be doubly relevant if the recipients share a geographical history. See Rabbi Moshe Nachum Yerushalimski, Responsa Be’er Moshe I, 2, who discusses this question at length.
16. See Bach 251, s.v. aniyei, who considers this “obvious,” and Shach, 251:6. See also Birkei Yosef, Yoreh De’ah 251:1, who cites the Maharash Chiyun as viewing the Bach’s “obvious” point as “possible.” See also the lengthy discussion of many related points in Rabbi Meir Asch, Responsa Imrei Eish, Yoreh De’ah, 101.
17. Responsa Chatam Sofer 6 (Likutei Teshuvot), 27.
18. Chiddushim to Yoreh De’ah.
19. See Pe’at HaShulchan, Hilchot Eretz Yisrael 2:22 in Beit Yisrael, 29.
20. Yosef Ometz, 19.
21. See similarly Rabbi Shraga Feivel Schnelbag, Responsa Shraga HaMeir IV, 64:3. See also Rabbi Betzalel Stern, Responsa BeTzeil HaChochmah IV, 162, who cites many opinions on both sides of the debate.
22. See also Responsa Shvut Yaakov III, 84; Responsa Givat Pinchas, 64; Rabbi Yisrael Y. Kanievsky, Karyana DeIgrisa I, 172; Responsa Shraga HaMeir IV, 64:2.
23. Kehilot Ya’akov, Bava Batra, 8.
24. Compare, however, Responsa Maharshag II, 201, who asserts that if one neglects the poor of his town and gives his tzedakah funds to poor of elsewhere, “what’s done is done” and no obligation of restitution is due to the poor of his town.
25. Concerning this pronunciation, see hagahot of Rabbi Ya’akov Emden, Bava Batra 123b.
26. See Gittin 30a. Rishonim differ as to the explanation of this concept: see Rashi to Gittin; Tosafot, Bava Batra 123b, s.v. hacha, Hagahot Asheri, Gittin 3:11 and the Mordechai, Gittin 363; and Rashbam, Bava Batra 123b. See Binah BaSefarim, vol. II, p. 204-216.
27. See Talmud Yerushalmi, Gittin 3:7.
28. Yoreh De’ah 257:13.
29. Responsa Maharshag II, 202.
30. This conclusion is based on the assumption of Tosafot that the operative factor is a passage in Bava Metzia 49a, which commands commitment to a “small gift.” See also Responsa Rabbi Yehudah Miller, 16; Rabbi Shlomo Drimmer, Responsa Beit Shelomoh, Yoreh De’ah II, 99; Responsa Minchat Elazar IV, 8 and V, 22; Rabbi Shlomo Leib Taback, Responsa Teshurat Shai I, 302; and Rabbi Avraham Yehudah Schwartz, Responsa Kol Aryeh, Choshen Mishpat, 125; and Rabbi Chaim Pinchas Scheinberg, Taba’at HaChoshen, 243, and see also Responsa Be’er Mosheh, ibid., who argues strongly that “makarei” is applicable.
31. The question of how exactly to relate to this priority when it conflicts with serving the needs of the severely destitute is addressed by Rabbi Ya’akov Meir Stern in the journal MiBeit Levi 16, p. 101-108.
32. See, for example, Responsa BeTzeil HaChochmah VI, 161.
33. See also Ahavat Tzedakah 9:3, n.91, citing Rabbi Yehoshua Leib Diskin, who notes two theories as to the priority of this cause: the magnitude of the personal need and the obligation of a father to marry off his daughter, which is then transferred to the community.
34. See, for example, Responsa Shevet HaLevi IV, 130 and IX, 202, who struggles with the task of establishing standards for housing assistance.
35. See, for example, Aruch HaShulchan, Even HaEzer 65:2; Responsa Shevet HaLevi, IV, 130; and Responsa Chukkei Chaim III, Yoreh De’ah 58, who discusses purchasing a shtreimel for the groom.
36. Bava Batra 21a.
37. See Responsa Teshuvot VeHanhagot III, 283, and Responsa Shraga HaMeir IV, 64.
38. See Darchei Moshe, Choshen Mishpat 163, citing Rabbeinu Yerucham, and Rema, Choshen Mishpat 163:3, and Biur HaGra, 80.
39. This position is emphatically taken by Responsa Mahari Assad (Yehudah Ya’aleh), Yoreh De’ah 315.
40. Concerning the particular obligation one has to support institutions in which one has children enrolled, see Responsa Shraga HaMeir, ibid.
41. See Responsa Maharshdam, Yoreh De’ah 167. Tzedakah UMishpat, ch. 3 n. 77, considers this to be the majority view. See also Responsa Minchat Yitzchak II, 39 and Rabbi Moshe Natan Nota Lemberger, Responsa Ateret Moshe, 191.
42. In the journal Tzohar II, p. 32; see Responsa Iggerot Moshe III, 94. See also the discussion of Rabbi Elyakim Devorkes in Tzohar II, p. 98-101, and Responsa Shevet HaLevi V, 144:2.
43. Yoreh De’ah 249: 16.
44. See Biur HaGra, Da’at Torah, and Aruch HaShulchan to Yoreh Deah ibid.
45. Bava Batra 9a, s.v. sheene’emar.
46. Responsa Shevet HaLevi I, 199. See also Responsa Shevet HaKehati III, 255.
47. Tracing back to the responsum of the Maharik on which the ruling of the Shulchan Aruch is based.
48. “Beit HaKnesset” may be a reference to structures that are used both for prayer and for Torah study.
49. An extensive analysis of this subject can be found in Rabbi Yehudah Zerachiah Segal, Tzemach Yehudah I, Yoreh De’ah 80:1.
50. Gittin 61a.
51. Shach, Yoreh De’ah 251:2, and Biur HaGra. See also Responsa Avnei Yosehfeh I, 193, and Emet LeYa’akov, Yoreh De’ah 251, fn. 137.
Rabbi Daniel Z. Feldman is a rosh yeshivah at the Rabbi Isaac Elchanan Theological Seminary at Yeshiva University, as well as an instructor in the Sy Syms School of Business, and has taught for the Wurzweiler School of Social Work and the Katz School of Continuing Education. He also serves as the executive editor of the RIETS initiative of YU Press.